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Can you refuse a breath test during a drunk driving stop?

Save for a few exceptions, there is a constitutional right against warrantless searches and seizures. Yet many drivers are still uncertain how that right plays out in the context of a drunk driving stop, particularly regarding breath or blood tests.

That confusion is understandable, as many legal authorities continue to seek the delicate balance between public safety and individual constitutional rights. In the context of drunk driving enforcement, there are differences among the states.

In Indiana, implied consent is the law of the land. Although a driver may refuse to take a breath test, there will be administrative consequences. His or her license will be suspended for up to one year, and the refusal may be considered a civil penalty.

Refusing a breath test also won't stop the police from gathering other evidence. For example, the police could circumvent a driver’s breath test refusal by obtaining a warrant for a blood test. Consequently, our drunk driving defense law firm generally recommends cooperating with the police at a traffic stop. If a driver is arrested, however, he or she has the right to an attorney and does not have to submit to further questioning without an attorney present.

According to Indiana authorities, chemical breath testing for impaired driving might be characterized as a condition to which drivers implicitly submit in exchange for the privilege of driving on the state’s roads and highways. Authorities say that implied consent is necessary because it would be too cumbersome to request a warrant for every driver pulled over on suspicion of drunk driving. For blood tests, however, a source from the Indiana Prosecuting Attorneys Council confirmed that police have utilized search warrants since 2013.

In our next post, we will take a closer look at the rights available to a driver during a drunk driving traffic stop.

Source: IndyStar, “Supreme Court decision will not impact Indiana DUI tests,” June 23, 2016

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